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Fed. R. Civ. P. 12(h)(1) relevantly that a party waives the defense of lack of personal jurisdiction by omitting it from a motion in the circumstances described in Rule 12(g)(2). Fed. R. Civ. P. 12(h)(1)(A). Rule 12(g)(2) prohibits a party from a raising a defense that was available to the party but omitted from its earlier Rule 12 motion. Fed. R. Civ. P. 12(g)(2). Thus, lack of personal jurisdiction is waived if a party omits the defense from a Rule 12 motion and the defense was available. A defense is not available under Rule 12(g)(2), for instance, if its legal basis did not then exist, or if the defense would have been futile in the sense it was precluded by controlling precedent.
David Cruson and other Texas residents brought a putative class action lawsuit against Jackson National Life Insurance Company, a life insurance company selling annuities, claiming that Jackson overcharged them by miscalculating early-withdrawal fees in breach of the annuities contracts. The district court certified a nationwide class of similarly-situated investors and determined that Jackson had waived its personal jurisdiction defense as to any non-Texas class members. The district court found that determining the correct calculation of surrender charges under Jackson's contracts, an issue common to all plaintiffs, would "predominate over any questions affecting only individual members." The present appeal followed.
The court held that the insurer did not waive its personal jurisdiction defense as to any non-Texas class members because, prior to class certification, such an objection was not available under Fed. R. Civ. P. 12(g)(2). According to the court, the district court erred in its Fed. R. Civ. P. 23(b) predominance analysis because it failed to assess how state-law variations could impact adjudication of the breach of contract issue, it failed to consider the individualized evidence relevant to the insurer's affirmative defenses of waiver and ratification, and the investors failed to offer a damages model adequate to support class treatment.